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Kimbro v. Commonwealth, Department of Public Advocacy

United States District Court, W.D. Kentucky, Paducah Division

June 12, 2015

TERI KIMBRO, Plaintiff,
v.
COMMONWEALTH OF KENTUCKY, DEPARTMENT OF PUBLIC ADVOCACY, Defendant.

MEMORANDUM OPINION

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court on competing motions for summary judgment. Plaintiff has filed a motion for partial summary judgment as to liability. (Docket #12). Defendant has responded. (Docket #15). Plaintiff has replied. (Docket #17). Defendant has filed a motion for summary judgment. (Docket #13). Plaintiff has responded. (Docket #14). Defendant has replied. (Docket #16). For the following reasons, Plaintiff's motion for partial summary judgment (Docket #12) will be DENIED and Defendant's motion for summary judgment (Docket #13) will be GRANTED.

BACKGROUND

This case arises out of Plaintiff Teri Kimbro's employment at Defendant Commonwealth of Kentucky, Department of Public Advocacy (the "DPA"). Kimbro suffers from respiratory issues including asthma and bouts of bronchitis and pneumonia. Kimbro claims she was constructively discharged by the DPA when the DPA failed to reasonably accommodate her health issues by allowing her to close her office door while an air filter was running. (Docket #12). The DPA responds that Kimbro voluntarily resigned and did not engage in a good faith interactive dialogue with the DPA about her health concerns. (Docket #13).

Kimbro worked as a legal secretary for the Paducah office of the DPA from January 1, 2006 until November 24, 2012. For the first six months of her employment, Kimbro worked in an administrative specialist's office while covering for an employee on maternity leave. Kimbro then assumed a departing employee's office and responsibilities, which in large part consisted of transcribing witness statements, hearings, and interviews. Approximately half of Kimbro's time was spent transcribing, while she also answered phones, archived closed files, ran errands at the courthouse, and greeted visitors when the receptionist was away. While Kimbro was transcribing, she was allowed to close her office door to shut out distractions, but otherwise the DPA required Kimbro to keep her office door open. (Docket #12).

In 2008, the DPA renovated its offices. Kimbro was assigned an office near the front of the building. Chris McNeill, the Directing Attorney for the DPA's Paducah office, testified that Kimbro's new office was designed to have a view of the reception area while Kimbro's door was open. (Docket #13). McNeill allowed Kimbro to shut her door while she was transcribing but otherwise preferred her door be open so that she could greet visitors when necessary and so that the DPA attorneys could come into her office with assignments without feeling that they were interrupting her work transcribing. (Docket #13).

In the fall of 2007, Kimbro experienced her first bout of bronchitis. In the spring of 2008, Kimbro met with Dr. Frank Block, who diagnosed her with seasonal allergic rhinitis and noted she was allergic to mold and certain weeds. (Docket #12). Kimbro attempted to remove allergens in her home by removing carpet, pets, using hypoallergenic bedding, drying out her basement, and using air purifiers. (Docket #12). Kimbro did smoke periodically and quit and restarted smoking multiple times during her employment with the DPA. (Docket #13-3, p. 12).[1] Kimbro suffered ongoing respiratory problems including twenty-six bouts of bronchitis and two bouts of pneumonia while employed at the DPA. From 2007 onward, each year Kimbro exceeded her annual allotment of sick leave. (Docket #12).

In February, 2012, Kimbro began regularly closing her door, even while not transcribing. Kimbro had purchased an air filter for her office and closed her door in an attempt to boost its efficacy. Kimbro did not initially inform McNeill that she was keeping her door closed for this purpose. (Docket #13-3, p. 18). On May 17, 2012, McNeill conducted a regular review of Kimbro's work. During the review, McNeill stated his preference that Kimbro keep her office door open unless she was transcribing. McNeill was concerned that Kimbro was not performing her work while her office door was closed and that attorneys were reluctant to interrupt her with assignments. (Docket #15). The following day, Kimbro sent an e-mail to McNeill stating she intended to request an ADA accommodation from McNeill's supervisor, Eric Stovall. Kimbro also stated her intention to provide medical records documenting her illness. (Docket 13-3, p. 49). McNeill forwarded this e-mail onto Stovall. (Docket #15).

Following this e-mail, the DPA decided to conduct an air quality assessment. (Docket #13-3, p. 49-50). The DPA informed Kimbro that she could keep her office door shut at all times pending the outcome of the air quality assessment, and Kimbro did so. Kimbro did not make an ADA accommodation request because "at the time, I was getting what I asked for." (Docket #13-3, p. 23).

Ensafe performed an air quality assessment which concluded that, except for one office, the "total fungal spore results of the indoor bioaerosol air samples were lower than the outdoor (exterior) sample." (Docket #13-2, p. 98). The exterior sample showed 32, 000 total fungal spores per cubic meter of air. Kimbro's office registered at 1, 600 and the other offices ranged between 2, 600 and 7, 700, except for one room in the back of the building which had an active water leak and showed 81, 000 total fungal spores per cubic meter of air. (Docket #13-2, p. 101).

On September 27, 2012, during another regular review of Kimbro's work, McNeill informed Kimbro of the results of the air quality assessment. McNeill told Kimbro that because the air quality assessment results came back normal, Kimbro would need to return to keeping her door open. McNeill and Kimbro discussed this policy and Kimbro understood that McNeill was open to reconsidering it if Kimbro became ill again. (Docket #13-3, p. 24).

On November 7, 2012, Kimbro had an argument with a fellow co-worker. Following the argument, Kimbro began packing up personal items from her desk. Kimbro stated she "was mad and was packing up like I'm mad, but I hadn't decided for sure what I was doing yet." (Docket #13-3, p. 28). Kimbro was absent the following day. Kimbro stated she was sick from "finishing up like another round of antibiotics and steroids" and was also "burned out." (Docket #13-3, p. 26). Kimbro sent an e-mail to McNeill informing him that she was resigning. On November 9, 2012, Kimbro went into the office and met with McNeill to confirm her resignation. Kimbro admits that McNeill tried to persuade her not to quit. (Docket #13-3, p. 27). Kimbro also acknowledges that the issue of her keeping her door closed was not discussed during her resignation meeting. (Docket #13-3, p. 27). The DPA requested that Kimbro write a resignation letter, which she did. In the letter, Kimbro stated she was resigning to "focus on my health, my education, and my family." (Docket #13-3, p. 57). Kimbro also expressed a desire to complete her master's degree, which she accomplished the following year. (Docket #13-3, p. 28).

Kimbro filed this action claiming the DPA failed to reasonably accommodate her disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ยง ...


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